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The Foreign Law Debate: Part II.

Continued from here.

What divides the two groups in the foreign law debate? I will make a few conjectures, again with the proviso that I am supplying broad generalizations and do not mean to attribute any of these views to any particular person (including Koh) on either side of the debate.

Doctrine. Much of the debate in the academic literature has been carried out at the level of doctrine. The Bradley and Goldsmith article I mentioned in my previous post made a doctrinal argument, about what courts really do or should do; their critics took issue on these grounds. In his series of posts criticizing Koh, Ed Whelan also made doctrinal arguments. Whelan's many critics made doctrinal arguments (you can find many of their posts at the Opinio Juris blog). My view is that doctrine does not get you very far. There are too few cases, going in all directions. A dull, dispiriting, and inevitable debate about what the founders believed has gone nowhere. The passions involved tell you that more is going on than a disagreement about what the sources say.

Politics. There is a clear left/right divide, with the left favoring the foreign law position. (In academia, "right" means something like center. Outside academia, though, "right" really does mean right, far- as well as near-.) Conservatives suspect that people on the left like foreign and international law because those people believe that these bodies of law tend to be more left-wing than American law is. (Whether international/foreign law is in fact farther to the left than American law is a question best left for another day. For too many people, the rest of the world consists of Europe rather than Iran, China, or Russia.) They note that people like Koh spend a lot of time discussing European attitudes toward the death penalty but not the European laws banning political parties or the worldwide trend toward restrictions on "defamation of religion." More is going on, however. These political positions reflect broader ideological and institutional commitments.

Institutional commitments. The left and right disagree about more fundamental issues, such as constitutional interpretation; these issues are implicated by the foreign law debate. Conservatives see an attack on originalism, which leaves little room for foreign law, and what for them is the typical liberal's excessive faith in the judiciary and distrust of the executive. The pro-foreign law positions are mostly about how the courts can take an active role in promoting international law. In their darkest nightmares, conservatives see a new generation of liberal judges selectively importing liberal norms into American law by citing foreign and international law—just when the conservatives thought they were on the verge of winning the debate on originalism.

American exceptionalism. Deeper still is the question of how Americans see themselves in the world. For conservatives, America is the exceptional nation. Other states should imitate the United States, not the other way around. Conservative or not, this is also mainstream public opinion. The pro-foreign law people, like most academics, reject American exceptionalism: the United States is an ordinary nation—good in some ways, bad in others. The United States needs to be disciplined and constrained, so that it is compelled to take into account the values and interests of other people in the world. The executive and legislative branches have no incentive to do this because only Americans can vote in U.S. elections. For this reason, only the courts, with their unelected, globe-trotting judges, can put a break on American exceptionalism.

It is this last issue which has made the foreign law debate politically explosive. Liberal academics have detected in the courts occasional dim glimmerings of awareness that the United States does not treat foreigners fairly. The academics seek to nurture this little plant, but the real basis for their view is not doctrinal but cosmopolitan—the particular cosmopolitan view that the fact of one's birth on one side of a border or another is morally arbitrary. This view throws democracy itself—at the national level—into question and pulls the rug out from under one of the chief rationales for originalism and for judicial restraint—that they prevent judges from interfering with democratic outcomes. Modern democratic theorists believe that foreigners should have a say in American policy, at least to the extent that American policy affects them. Their followers in the legal academy have taken the next logical step, concluding that if the political branches will not give foreigners a vote, or at least take their views more seriously than in the past, then the courts must figure out some other way to protect foreign interests. Incorporating foreign and international law is the way to do this.

The problem for these people, and a problem that conservatives have been quick to exploit, is that cosmopolitanism has little popularity among Americans. Koh himself has resolved this dilemma simply by claiming that whatever is cosmopolitan is in America's interest—that the American and global interest converge in a standard set of Democratic party policy prescriptions. But few will be persuaded by this argument.

The foreign law position, then, is politically vulnerable, while at the same time philosophically coherent and highly appealing to liberals and indeed sophisticated people of other political stripes who dislike America's thuggish behavior on the international stage. In this way, it has a lot in common with Warren Court constitutionalism and, depending on how political winds blow, may someday likewise enjoy a moment in the sun.

Related Posts (on one page):

  1. The Foreign Law Debate: Part II.
  2. The Foreign Law Debate: What's At Stake? Part I.
martinned (mail) (www):

They note that people like Koh spend a lot of time discussing European attitudes toward the death penalty but not the European laws banning political parties or the worldwide trend toward restrictions on "defamation of religion." More is going on, however. These political positions reflect broader ideological and institutional commitments.

Isn't that the idea? See what the rest of the world is doing and take only what is good? After all, it is not the mere fact of other practice that is interesting, but more the rationale for the different laws. To the extent that Europeans are wrong to enact laws to prevent democracy and freedom from being used to destroy democracy and freedom, that's the end of it. Only good ideas matter.
6.25.2009 10:52am
Hans Bader (mail):
Liberal law professors and judges may say that American courts should look more to foreign court rulings in interpreting our Constitution. But they do so only when it is ideologically convenient.

For example, liberal Supreme Court justices cite foreign court rulings to advocate cutting back on the use of the death penalty. Some liberal lawyers go further, claiming that since most European countries don't have capital punishment, the death penalty must be against "customary international law" and the weight of world opinion (even though ordinary citizens in many European countries, like the United Kingdom, typically support the death penalty).

But they ignore foreign law and world opinion when it calls into question liberal policies in the United States. One classic example is the horror that most countries' courts have for the American practice of letting virtually unguided juries award punitive damages. In most of the world, punitive damages are forbidden.

Another example is abortion; while most European countries recognize the right to an abortion, they recognize that that right, like all rights, has limits, and typically require that abortions be performed prior to the end of the first trimester (unlike in the United States, where third-trimester partial-birth abortion was long de facto legal, and remains difficult to regulate as a result of court rulings).

Foreign constitutions are often very different from ours, but that doesn't stop liberal Supreme Court justices from citing court rulings interpreting those constitutions as if they were relevant to ours. Yet liberal judges ignore relevant foreign court rulings involving provisions that are identical to American laws when it is convenient to do so.

For example, both the U.S. and foreign countries signed the Warsaw Convention, and helped craft it, so U.S. courts should look to foreign court rulings for any insights they may have about what its vague provisions mean and what its drafters intended. But in Olympic Airways v. Husain (2004), the Supreme Court, including its liberal justices, did just the opposite, joining in a Supreme Court decision that, as Justice Scalia noted in dissent, rejected the rulings of every foreign court that has considered the meaning of the Warsaw Convention. (The ruling, not surprisingly, was "liberal" in that it allowed for more liability than foreign courts would have permitted). That ignored the longstanding principle that in interpreting a treaty, courts of one country are supposed to "accord the judgments of our sister signatories considerable weight."

American lawyers also ignore foreign law when it comes to privacy. Many foreigners are puzzled by the multibillion dollar lawsuits brought by lawyers against phone companies for cooperating with government antiterror surveillance programs after 9-11. Other countries like Sweden permit their governments to engage in much broader surveillance than the FISA bill would permit the U.S. government to do. The belief by many liberal commentators that the government should have to obtain a warrant before monitoring communications with foreign terrorists strikes many foreigners as peculiar. So, too, does the claim that the phone companies should be subject to punitive damages, even if the government itself doesn't have to pay a dime.

There are risks to looking to "international law" in interpreting our Constitution. So-called "international law" has been a major obstacle to combatting piracy in the crucial shipping lanes off the coast of Somalia, leading to killings, kidnappings, and billions of dollars in losses.

"International law" is also vague and manipulable. International tribunals and "human rights" bodies issue rulings that purport to have the force of law. But much of their reasoning is based not on written laws found in any law book, or agreed to by any legislature or citizenry. Instead, it is based on vaguely-defined "customary international law," principles of so-called "natural law" derived from a supposedly "clear consensus" by enlightened people across the globe. But that "consensus" is often illusory, since it can easily be fabricated, manipulated, or distorted by international lawyers.

Lawyers are, on average, further to the left politically than the average citizen. And so-called international lawyers are even more so. Just as the grass always seems greener on the other side of the fence, lawyers often claim that the law is more liberal elsewhere in the world than in their own benighted country, and that such liberal norms -- at odds with their own country's law -- constitute customary international law. Thus, it is commonly argued that customary international law bans the death penalty for mass murderers, and requires countries to ban disfavored forms of speech (such as "hate speech," or criticism of any religion), although in reality, the strongest support for bans on such speech actually comes from undemocratic regimes like Cuba and China.

It is hard to fight these claims even when they are false, because ordinary people (and even most lawyers) don't know much about foreign law. The lawyers who fashion "customary international law" are thus largely unaccountable. Perhaps as a result, customary international law is generally of poorer quality than domestic law. Scholars have cited this fact in celebrating the Supreme Court's recent decision in Medellin v. Texas (2008), which refused to make Texas hear yet another challenge to a murderer's conviction (which had already twice been upheld by different court systems) when ordered to do so by the International Court of Justice (a ruling at odds with the fact that virtually all ICJ member countries permit only one appeal of a conviction, not successive appeals).

Misleading the public about foreign law is common among "human rights" officials. For example, an official in Australia's new Labour government claims that people accused of race discrimination should have to prove themselves innocent, rather than being proved guilty. To justify this outrage, he and Australia's "human rights" commission claim that is the practice in America, when in fact it is to the contrary in the U.S., as the Supreme Court made clear in its Burdine and Hicks decisions.

American law generally puts the burden of proof on the complainant and the government, not the alleged offender. The U.S. Supreme Court explicitly so ruled in Texas v. Burdine (1981) and St. Mary's Honor Center v. Hicks (1993). But Australia's Race Discrimination Commissioner, Tom Calma, and the Australian Human Rights and Equal Opportunity Commission falsely claim that under American law, "the onus of proof" is on "the person who has been accused of discrimination." (See "Call to Switch Onus on Racist Offenses," The Age, News, April 5, 2008).

Joseph H.H. Weiler, a law professor who co-drafted the European Parliament's Declaration of Human Rights and Freedoms, made American legal thinking seem more liberal than it is, by inviting to Europe to represent it two of America's most radical law professors: the University of Michigan's Catharine MacKinnon, who considers most heterosexual sex to be rape; and Harvard Law School's Duncan Kennedy, who advocated having law school professors periodically exchange their positions with college janitorial staff in order to promote diversity and social equality.

By contrast, when laws across the world are more conservative than a law professor's own, they are studiously ignored in formulating "human rights" law (like the world-wide aversion of most countries' legal systems toward civil punitive damages and late-term abortions, which U.S. law often permits).

The very international "human rights" lawyers who insist that "hate speech" should be curbed are often radicals who are blind to certain forms of prejudice. A classic example of this is the disturbing Richard Falk, recently appointed by the U.N. Human Rights Council to investigate Israel. Falk, a liberal Princeton professor emeritus, has likened Israel to the Nazis, praised the Ayatollah Khomeini (the Iranian dictator whose regime ordered the killings and torture of many religious and ethnic minorities in Iran), and promoted 9/11 conspiracy theories that accuse the U.S. government of complicity in the 9/11 attacks. Falk's wackiness may offend the general public and Israel, which plans to bar him from coming to Israel, but it apparently does not offend lawyers and state judges very much: it apparently did not stop the Washington State Supreme Court from citing his advocacy of affirmative action to uphold a discriminatory, gender-based affirmative-action set-aside in public contracting.
6.25.2009 10:56am
martinned (mail) (www):

Some liberal lawyers go further, claiming that since most European countries don't have capital punishment, the death penalty must be against "customary international law"

For the record, and even though I'm against the death penalty: Anyone who says that should go back to 1L.
6.25.2009 11:01am
martinned (mail) (www):

But in Olympic Airways v. Husain (2004), the Supreme Court, including its liberal justices, did just the opposite, joining in a Supreme Court decision that, as Justice Scalia noted in dissent, rejected the rulings of every foreign court that has considered the meaning of the Warsaw Convention.

FYI, most foreign courts would happily do the same. The idea that it can be useful to examine the case law of other parties to a treaty, especiallly a bilateral treaty, is not very popular in civil law countries.
6.25.2009 11:03am
Ryan Waxx (mail):

The foreign law position, then, is politically vulnerable, while at the same time philosophically coherent and highly appealing to liberals and indeed sophisticated people of other political stripes who dislike America's thuggish behavior on the international stage.


Psst. You forgot to mention the baby killing.
6.25.2009 11:12am
LarryA (mail) (www):
There is a clear left/right divide, with the left favoring the foreign law position.
This is somewhat correct, in that conservatives are not in favor of sacrificing U.S. sovereignty to the present "world government." However, from conservative arguments I get the distinct feeling that the folks on the right would be just fine with a world government that espoused conservative principles, particularly if it was "Christian" government. That's because both major U.S. political parties have evolved to a "more government is good because it can more effectively run people's lives" position.

The argument that we don't want more world government because we don't even want nearly as much national government as we're getting, gets lost in the shuffle.
In academia, "right" means something like center. Outside academia, though, "right" really does mean right, far- as well as near-.
OTOH in academia "liberal" doesn't really mean classic liberal, either. In the U.S. it's libertarians who are "associated with ideals of individual especially economic freedom, greater individual participation in government, and constitutional, political, and administrative reforms designed to secure these objectives." And we don't get no respect.
To the extent that Europeans are wrong to enact laws to prevent democracy and freedom from being used to destroy democracy and freedom, that's the end of it. Only good ideas matter.
Except that isn't the way the law works. Next time a cop pulls you over for doing something you don't think is wrong, try arguing you only obey the "good" laws. Give me a call first, though. I'd like to watch, from a distance.

International cops won't be any more forgiving.
6.25.2009 11:13am
martinned (mail) (www):

Joseph H.H. Weiler, a law professor who co-drafted the European Parliament's Declaration of Human Rights and Freedoms

I'm not sure what declaration you have in mind. The EU Charter of Fundamental Rights is not uniquely tied to the Parliament. It was proclaimed (it is non-binding) jointly by the Presidents of the three institutions.
6.25.2009 11:13am
martinned (mail) (www):

Except that isn't the way the law works. Next time a cop pulls you over for doing something you don't think is wrong, try arguing you only obey the "good" laws. Give me a call first, though. I'd like to watch, from a distance.

International cops won't be any more forgiving.

Now you're confusing the difference between a binding precedent and everything else again. No one is saying anything foreign is binding on US courts, except treaties which are duly ratified. Like law review articles, foreign precedents only matter to the extent that they come with convincing arguments. (Cf. prof. Posner's first post if you don't get this.)
6.25.2009 11:16am
[insert here] delenda est:
The Warsaw Convention is a bilateral treaty?

But you are right, this causes difficulty in tax cases in particular when countries like Italy can just go completely off the reservation.
6.25.2009 11:20am
[insert here] delenda est:
Sorry, I hadn't seen LarryA's comment. The comments about conservatives and world government strike me as so far off base they must be tongue in cheek, but they aren't. Martinned is exactly right, too.

However I think Martinned mistakes LarryA's intent. I think he was referring to a putative future in which we had subjugated ourselves to a world government, perhaps the phantasmagoric version of his first paragraph. In which context he would be right. But that is like saying: 'in Middle-Earth,...
6.25.2009 11:25am
Brian S:
I think that these two posts have done a good job in laying out the terrain in terms of who the sides in the foreign law debate are, but as is usual in American politics, people are ending up in the same camp for wildly divergent and contradictory reasons.

For example, as far as I can tell, it's possible to be a "sovereigntist" for at least two contradictory reasons:

1. Because one does not wish to see American legal and political institutions superceded by foreign ones. You could call these people "US rule of law sovereigntists".

-OR-

2. Because one does not wish to see the US executive restrained in any way in its conduct of foreign policy, and if the executive wants to sign treaties and then break them at will, or sign treaties for propaganda value that it has no intention of executing, that's just part of realpolitik and no court should stand in the executive's way. You could call these people "Screw the rule of law sovereigntists".

The people who believe #1 and the people who believe #2 are not the same people, and their views are actually in direct conflict in many ways, but they are somehow depicted as being the same side.
6.25.2009 11:38am
PLR:
It is this last issue which has made the foreign law debate politically explosive. Liberal academics have detected in the courts occasional dim glimmerings of awareness that the United States does not treat foreigners fairly. The academics seek to nurture this little plant, but the real basis for their view is not doctrinal but cosmopolitan—the particular cosmopolitan view that the fact of one's birth on one side of a border or another is morally arbitrary. This view throws democracy itself—at the national level—into question and pulls the rug out from under one of the chief rationales for originalism and for judicial restraint—that they prevent judges from interfering with democratic outcomes. Modern democratic theorists believe that foreigners should have a say in American policy, at least to the extent that American policy affects them. Their followers in the legal academy have taken the next logical step, concluding that if the political branches will not give foreigners a vote, or at least take their views more seriously than in the past, then the courts must figure out some other way to protect foreign interests. Incorporating foreign and international law is the way to do this.

That is a very lovely piece of creative writing. And I mean that sincerely, I'm not channeling Sarcastro.

It's interesting how we claim certain telepathic insights about the motivations and beliefs of groups to which we do not actually belong. And it's even more interesting that if the group protests that its motives have been misinterpreted and grossly so, that is somehow excuse-making and evidence of the telepath's assertions, and not any kind of rebuttal.
6.25.2009 11:52am
James Gibson (mail):

There is a clear left/right divide, with the left favoring the foreign law position.

As a reader of American history its deeper then that. During the early period of America the Federalists were the pro-England group while Democratic Republicans were pro-French. It reached a point where in Congress the representatives were identified as Messr instead of Mr. In short, there were those who favored the English tradition in law and government and those (who could be called Liberal) who favored alternative systems which in that time was represented by France. And like today they took from the alternative system what they liked the most about it, while ignoring the rest of the baggage that came with it.

And that baggage eventually became ignoring the Reign of Terror of the revolution and then Napoleon. Like Beethoven who praised Napoleon until he declared himself emperor, a lot of the pro-French european liberals had to do a public about face when their limited picture of the world was shattered by the big picture.

And in the that regard is European law today really European or is it the left-over vestiges of French Napoleonic law. Is the reason why English law today is so different from the rest of the continent because England is conservative while the rest of Europe is liberal, or is it that England wasn't conquered by Napoleon. Put differently, why is it foreign law doesn't support habeus corpus, or views you as guilty until proven innocent,while English law is the opposite.

We need to understand how the law evolved, not how it can be presently useful. Otherwise we take the law out of context and worse open the door to all the other issues that go with that law in the land where it comes from.
6.25.2009 11:55am
George Smith:
I just don't give a dingo's kidney what the law of any other country is on any particular matter, and don't see any reason why I should.
6.25.2009 11:57am
[insert here] delenda est:
That's a beautiful combination of name and jargon, George Smith, chapeau!
6.25.2009 12:01pm
martinned (mail) (www):

Is the reason why English law today is so different from the rest of the continent because England is conservative while the rest of Europe is liberal, or is it that England wasn't conquered by Napoleon.

Not that it matters for this thread, but the answer is: Neither. English law was very different from Scots and Continental law long before Napoleon. It has to do with the influence of Roman law in the latter but not the former, with the peculiar history of the Courts in England and with the English Civil war and its aftermath, including the Glorious Revolution. Today Scots law is slowly evolving towards English law, because the House of Lords is the supreme court for both, and in many areas the UK parliament still legislates for both, but even today Scotland is still a half-way jurisdiction.

(A good recent example is this House of Lords ruling from last week. In trying to figure out how to define the statutory term "consumer hire agreement", some of the Lords started by comparing the English law definition that the statute gave with the Scottish one. For Scotland, the answer was quite simple, since it simply talked about the hiring of goods, but in English law the statute referred to contracts for bailment, which made the whole thing a bit more complicated.)
6.25.2009 12:04pm
Sofa King:

Isn't that the idea? See what the rest of the world is doing and take only what is good? After all, it is not the mere fact of other practice that is interesting, but more the rationale for the different laws. To the extent that Europeans are wrong to enact laws to prevent democracy and freedom from being used to destroy democracy and freedom, that's the end of it. Only good ideas matter


That's almost a textbook case of begging the question. If we are already able to tell "good" foreign law from "bad," then why don't we just use the same justification for the original case?

"Look here, this foreign law supports my point of view!"
"Why should we accept the view of foreign law?"
"Because we only consider good foreign law!"
"How do we know this foreign law is good?"
"It supports my point of view!"
6.25.2009 12:49pm
SamW:
I don't see the problem. You say in your prior post that this has not had an effect on judging, thus far, and you say its not politically popular. But it won't ever have much effect, until it is politically popular.

Call us, when a US District court rules:

'Although I would decide this case diferently, the European Court's judgment compels a different result, and I am bound by that judgment.'
6.25.2009 1:03pm
iowan (mail):
It seems to me that international law is far left. Which lead to my observation that here in the US, what liberals fail to accomplish in the legislature they attempt to litigate into existance. Failing that the next resort is international law through treaties
6.25.2009 1:14pm
martinned (mail) (www):

That's almost a textbook case of begging the question. If we are already able to tell "good" foreign law from "bad," then why don't we just use the same justification for the original case?

They do, and no one would have it otherwise. Citing out of jurisdiction case law (that could be case law from another district/circuit/state as well) is something akin to an argument from authority, that helps to prop up the outcome.
6.25.2009 1:30pm
martinned (mail) (www):

here in the US, what liberals fail to accomplish in the legislature they attempt to litigate into existance. Failing that the next resort is international law through treaties

Yes! Those evil treaties! If only the US had a president and a senate to keep an eye on those things...
6.25.2009 1:31pm
Eric Rasmusen (mail) (www):
As Hans Bader and the post point out, the obvious reason liberals quote foreign law is sophistry, cherry-picking to support their policy views-- the same way they quote the US Constitution, actually. But the post is good in that it goes beyond that motive to other, more interesting motives. The American Non-Exceptionalism one is insightful. There are several things going on, though:

1. The idea that country of citizenship, venue, jurisdiction, shouldn't matter.

2. The idea that rights and law should be beyond elections, in the hand of fair experts.

3. The idea that Western Europeans (but *not* Africans, Asians, etc., Eastern Europeans and maybe not even the British) are more sophisticated and wiser than Americans. Well, maybe limit it to the core EU minus Italy and West Germany plus Norway and Sweden and Finland, actually.
6.25.2009 3:27pm
Oren:

here in the US, what liberals fail to accomplish in the legislature they attempt to litigate into existance. Failing that the next resort is international law through treaties

Of course, getting a treaty ratified (2/3rds of the Senate) is much easier than getting a bill passed (3/5ths of the Senate).

Wait, what?
6.25.2009 6:07pm
LarryA (mail) (www):
The comments about conservatives and world government strike me as so far off base they must be tongue in cheek, but they aren't.
Well, my comment wasn't tongue-in-cheek. Perhaps you can convince me I'm off base. When I hear conservatives say the U.S. should go forth into all the world and remake the other governments like ours, that sounds a lot like a conservative (and usually Christ-based) world government to me. It's just that they want to run it from here instead of from the E.U.
I think he was referring to a putative future in which we had subjugated ourselves to a world government, perhaps the phantasmagoric version of his first paragraph. In which context he would be right. But that is like saying: 'in Middle-Earth...
Basic European government philosophy says that government should tell people what to do, and people should obey. The fundamental U.S. government philosophy is that the people tell the government what to do, though we've strayed from that original intent.

It will be difficult to let world government have only the "good" power to run only the half our lives liberals want regulated.
6.25.2009 6:47pm
martinned (mail) (www):

Basic European government philosophy says that government should tell people what to do, and people should obey. The fundamental U.S. government philosophy is that the people tell the government what to do, though we've strayed from that original intent.

That one's actually kinda cute, I should remember it for future use. Nice piece of rhetorical flourish...
In reality, of course, all government is for is to tell people what to do. That is pretty much its only purpose. (It provides some services that don't involve tell people what to do, but arguably those aren't the core of the government function.) For the system to work, it requires balance: the government tells people what to do, and the people tell the government what to do. Balance.
6.25.2009 6:55pm
ohwilleke:
A big piece of the "foreign law" debate is fundamentally a debate about "rule of law," e.g. the notion that U.S. actors have a legal obligation to obey treaties and other duly adopted foreign instruments. Liberals favor rule of law, conservatives favor "escape hatches" that allow U.S. actors to ignore these legal commitments in favor of popular sovereignty.

Conservatives don't hesitate to refer to stale British law, despite the fact that the founders to some extent were trying to move away from it, and tend to overlook the express authority of the U.S. Supreme Court to opine on international law in Article III.
6.25.2009 7:13pm
Glen Alexander (mail):
This is one of this most interesting — and civil — comment threads I've read on VC in a long time. Again, like so many other clashes, this one, too, dissolves into a fundamental Hobbesian vs. Lockean view of the world.

But I can't help but take exception with the comment that the sole purpose of government is to "tell people what to do." Having spent much time in parts of the world (including Western Europe) where the prevailing joke is "that which is not prohibited is mandatory," I enjoy coming home to American exceptionalism.
6.25.2009 8:09pm
martinned (mail) (www):
@Glen Alexander: What else is the government for? Congress makes laws that tell people what to do (or what not to do, but that distinction is irrelevant), the executive keeps an eye on things to make sure that the laws be faithfully executed, and if they are not, prosecute the offender before the courts. Government also arranges the national defence, and a few other things, depending on what country or state we're talking about, but at its core government is about issuing and enforcing commands. But that does not mean that "that which is not prohibited is mandatory". Many things are permitted as well.*

*There are four kinds of laws:
- It is obligatory to do X, O(X).
- It is obligatory not to do X, O(-X).
- It is permitted to do X, P(X).
- It is permitted not to do X, P(-X).

But they all reduce to one another. O(X) = -P(-X), O(-X) = -P(X), P(X) = -O(-X) and P(-X) = -O(X). [Rest of legal theory lecture omitted.]
6.25.2009 8:21pm
one of many:
Of course, getting a treaty ratified (2/3rds of the Senate) is much easier than getting a bill passed (3/5ths of the Senate).



depending what part of, and how you are trying to implement it, transnational law being applied to the US may have no need for senate ratification. the distinction of transnational law from international law (treaty law between nations) is that transnational law is above nations and has an existence outside of nations (per Koh). transnational law can be codified in international law by a treaty but if a law is transnational then it applies to nations which haven't signed or ratified a treaty.
6.25.2009 10:33pm
bender:
I just don't give a dingo's kidney what the law of any other country is on any particular matter, and don't see any reason why I should.


Does it not occur to you to think that maybe, just maybe some other country has been confronted by similar legal policy issues as people in the US--and that maybe, just maybe learning about how they approached said policy problems might yield some insight into how to deal with our issues, and that maybe, just maybe this doesn't make you a secret proponent of world government seeking to undermine "American power" at all costs like "many" on the left?

The notion of American exceptionalism is a recipe for complacency and decay. Wake up.

Mr. Bader--if you're going to bring up Weiler, at least try to mention his views. This may require reading something he's written.

Mr. Posner--please make an effort to at least explain your logical leaps. With all due respect this smells like muddled tripe to me (to the point where I don't even know where to begin with it):

the real basis for their view is not doctrinal but cosmopolitan—the particular cosmopolitan view that the fact of one's birth on one side of a border or another is morally arbitrary. This view throws democracy itself—at the national level—into question and pulls the rug out from under one of the chief rationales for originalism and for judicial restraint—that they prevent judges from interfering with democratic outcomes.
6.25.2009 10:43pm
Tracy W (mail):
See what the rest of the world is doing and take only what is good? After all, it is not the mere fact of other practice that is interesting, but more the rationale for the different laws.


Well there's already a mechanism for that consisting of either passing legislation, or amendments to the constitution, depending on the issue in question. I don't think that Posner is against legislation being passed based in part on the argument that "x country tried this and it worked great, and we have reasons to believe it will work great in the USA too."
The debate, as I understand it, is whether foreign law should be used as a reference in and of itself in interpreting US laws and the US Constitution.
6.26.2009 4:44am
David M. Nieporent (www):
Does it not occur to you to think that maybe, just maybe some other country has been confronted by similar legal policy issues as people in the US--and that maybe, just maybe learning about how they approached said policy problems might yield some insight into how to deal with our issues, and that maybe, just maybe this doesn't make you a secret proponent of world government seeking to undermine "American power" at all costs like "many" on the left?
That's all well and good... for legislators. But we're talking about judges.
6.26.2009 6:03am
SamW:
Why? DN? Logic is logic and reason is reason. If such comes from a foreign source its not binding, but why can't you, under any circumstances, be pursuaded by it? Just because its foreign?
6.26.2009 7:32am
[insert here] delenda est:
I am curious, does anyone else here think that the version of American exceptionalism discussed here is just silly? As this thread would define it, American exceptionalism is merely the belief that America is different and better than the rest of the world. This, I assure you, is American unexceptionalism at its best.

Also, martinned has been allowed to get away with his comment at 1:31 since I suspect there are very few other people commenting who know better. But the real issue is not the treaties that are entered into but how the sometimes radically 'left' (for the purposes of this debate) international law community decides to try and interpret them. Suffice to say that originalism is rather scarce.

Partly, this is actually inevitable. It would appear that a lot of the jargon in international law is words such as must have an ambulatory meaning - if nothing else, our understanding of what might constitute persecution is clearly capable of changing over time. Standards for a free and fair election, similarly. 'Rights' to life and dignity can mean different things to different people, as can indeed nearly any rights.

Doctrines such as proportionality are fertile ground for rewriting international law concepts to suit the perspective - the debates around the Iraq war and around Israel's response to Palestinian terrorism both reflect this, as do some debate about what might be done in, eg, Sudan.

Happily, a sensible sovereign government and its courts can pretty much tell the buggers to get buggered, the question being whether they will or not. Someone like Koh pretty plainly is in bed with the buggers, and that is enough reason for me to have never appointed him, and if I were in the Senate I would have abstained from voting on his confirmation.
6.26.2009 10:49am
George Smith:
OK, Bender: The English Rule - loser pays. I'm waiting for the left to sign on to that one.
6.26.2009 11:42am
The Inchoate Left (mail):

OK, Bender: The English Rule - loser pays. I'm waiting for the left to sign on to that one.


George Smith is paying?
6.27.2009 5:22pm

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